A close-up look at NYC education policy, politics,and the people who have been, are now, or will be affected by these actions and programs. ATR CONNECT assists individuals who suddenly find themselves in the ATR ("Absent Teacher Reserve") pool and are the "new" rubber roomers, people who have been re-assigned from their life and career. A "Rubber Room" is not a place, but a process.
Both unions and
employers have the right to designate who represents them in the collective
bargaining process. In Kiona Benton School
District, PERC Hearing Examiner Guy Coss ruled, without a hearing, after a
motion for “summary judgment”, that the Kiona Benton Education Association
breached its duty to bargain in good faith by refusing to bargain with the
School District’s designated collective bargaining representatives.
In this case, the District notified the union twice, and in
writing, who it designated as its collective bargaining representatives. The
union responded that it would only communicate with the superintendent and the
union would “no longer” communicate with the employer’s designated
representatives. The union argued that the employer essentially waived its
right to designate a collective bargaining representative because it did not
only use its designated representatives for collective bargaining purposes. The
union also argued that the employer had been uncivil and difficult to deal
Examiner Coss rejected both arguments explaining that the
union’s refusal was “clear and unequivocal”: the union refused to “evercontact
the employer’s designated representatives for any reason
whatsoever;” and the union unilaterally “dictate[d] who the employer’s
representative would be.” The Examiner also explained that the uncivil
behavior of the employer was “not material” because if the union had any
complaints about the employer, the proper course of action would be for the
union to file a complaint
with PERC. Based on these reasons, the Examiner granted the employer’s motion
for summary judgment.
The Examiner reiterated that the right to choose a
representative extends equally to both the union and the employer.
“It is clear that both unions and employers have an
important, though not absolute, right to designate those representatives that
they feel are best qualified and positioned to represent them in collective
He continued by explaining,
“The Commission’s rules do not require parties’
representatives to be licensed attorneys or to hold any other license,
training, or experience. It is up to each party to choose their own
representatives based on the level of knowledge (legal or otherwise, experience,
and training they feel is necessary to represent them.”
A federal appeals court has revived a lawsuit brought on behalf of a Pennsylvania high school student that alleged a high school history teacher created a sexually hostile environment in the classroom by, among other things, showing nudepicturesof murder victims.
A panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 2-1 to order a new trial in the civil lawsuit against Bruce H. Smith Jr., who was a 20th century history teacher at Pleasant Valley (Pa.) High School in 2007 when a female student identified in court papers as M. Young found many of his teaching methods offensive.
Court papers say Smith displayedphotosof, among others, the nude body of Charles Manson murder victimSharon Tateas part of a lesson about the "undercurrent of the hippies." Smith also allegedly said that women were not suitable to be U.S. president because they get their "monthly visitor"—or menstrual period.
The teacher also once compared the beauty typified by the "Gibson girl" of the early 20th century with Victoria's Secret models, discussing pushup bras and whether students thought one model's "breasts were firm enough," according to the student's trial testimony.
"It always came back to women," Young testified, according to court papers. "It was always degrading women."
After Young's parents complained to the principal, Smith was suspended, but he was later reinstated and his teaching methods were monitored more closely.
Young and her parents sued Smith over the allegedly sexually hostile environment in the classroom. The suit also named the principal, the superintendent, and the Pleasant Valley school district as defendants, claiming that Young faced retaliation for her complaint.
The case has a long and complex procedural history. A jury in a 2011 trial ruled against Smith and the school district and awarded some $325,000 in damages. But the trial judge tossed out the verdict and ordered a new trial.
In 2013, a new trial judge dismissed the suit's claim of sexually hostile environment against the teacher, and a jury ruled for the school district and administrators on the retaliation claims.
The panel unanimously upheld the dismissal of the retaliation claims against the school district and administrators.
"Here, the Youngs did not present sufficient evidence to allow a reasonable jury to conclude that the School District's alleged retaliatory acts were committed pursuant to an official policy or custom, as is required to establish Section 1983 municipal liability," the appeal court said.
However, the panel held 2-1 that Smith was not entitled to judgment as a matter of law on the Youngs' hostile educational environment claim.
"A reasonable jury could have found that Smith created a hostile educational environment," Judge D. Michael Fisher wrote for the majority. "Over the course of one semester, a classroom filled with 16- and 17-year-old students was regularly subjected to references to sex andgraphic depictions of nudity and violence that degraded women."
"Such a classroom environment could make a reasonable female teenager feel uncomfortable, and it did in fact cause M. Young discomfort to the point of nausea according to her testimony," Fisher added. "Because the Youngs presented sufficient evidence to create a genuine issue of fact for trial, we vacate the District Court's grant ofsummaryjudgment and remand for a new trial."
The dissenter, Judge Thomas M. Hardiman, (pictured above) said that "only an environment permeated with discriminatory intimidation, ridicule, and insult will satisfy the onerous standard for a hostile environment."
"The majority concludes that Smith's classroom environment could make a female teenager 'feel uncomfortable' and could cause 'discomfort.' But that is not enough" under the proper legal standard to allow the claim to go to trial, Hardiman said.
In Kiona Benton
School District, the Public Employee
Relations Commission affirmed Examiner Coss’s finding that the Kiona
Benton Education Association, the Union that represents certain teachers in the
School District, breached its good faith bargaining obligation under State
collective bargaining laws by refusing to communicate with the District’s
designated collective bargaining representatives.
Twice, the District sent
emails notifying the Association of its two designated representatives and, if
those individuals were not available, that the Association could contact the
Superintendent of the District. The Association responded by email to
one of the designated representatives indicating that the Union’s representative
would not contact the designated point of contact and would only communicate
with the Superintendent.
On Appeal, the Association
argued that it did not commit a refusal to bargain unfair labor practice,
because the District had repeatedly departed from its direction and a different
Employer representative communicated directly with the Association
regularly. The Association also argued that the two designated
individuals were unavailable or unqualified to respond when the Association
contacted another Employer representative.
The Commission was not
persuaded and found that the Association’s arguments were “attempts to justify”
its actions. The Commission reasoned that regardless of the Union’s
explanation, the fact remains that the Union representative put in writing his
refusal to communicate with the Employer’s designated representative. The
Commission determined that the response from the Union was “a clear refusal
to communicate with the employer’s designated collective bargaining
representative.” Therefore, the Commission concluded that the Union’s refusal
interfered with the Employer’s right to select its
representative for collective bargaining.
The Commission distinguished
between Union officials’ right to lobby public officials on public issues and
when a Union official commits an unfair labor practice by circumventing the
Employer’s chosen bargaining representative. In this case, the Commission
explained that the District had designated a primary representative and the
Association crossed the line into an unfair labor practice when it specifically
informed the District that it would not communicated with that designated individual.
Editor’s Note [Chris
Casillas]: This case should not be viewed as prohibiting or limiting the
ability of a union to directly contact and petition the elected
representative(s) of an Employer. In fact, PERC reaffirms in this case
that Unions have such a right. What set this case apart was that the
Union officials repeatedly refused to funnel their communications through the
Employer’s designated bargaining representatives, and instead sought to contact
the School Superintendent directly on matters of collective bargaining.
While both sides have to respect who the other side has designated as their
bargaining representatives, this does not mean that the Union is prohibited
from seeking out and petitioning their elected officials to lobby on behalf of
Both employer and union can violate
their good faith bargaining obligations under the state collective
bargaining laws when one party advances proposals prior to interest
arbitration that are regressive from proposals made earlier in negotiations. In Spokane County (Spokane
County Deputy Sheriff’s Association), PERC Examiner Stephen W. Irvin found, and the
that the Spokane County Deputy Sheriff’s Association breached its good faith
bargaining obligations by submitting a regressive wage proposal after impasse
and shortly before the parties’ scheduled interest arbitration hearing.
Association had initially tied its wage proposal to the Consumer Price Index
(CPI); however, the Examiner had concluded that prior to arbitration the
Association severed the tie to the CPI when conveying its wage proposal to the
interest arbitration panel, resulting in an escalated wage demand.
Association argued that it never intended to tie its wage proposal to CPI-U,
because its proposal was meant to offset the potential of significantly higher
costs. The examiner evaluated the union’s overall bargaining behavior and
concluded, “Despite the employer’s insistence on a wage freeze for 2012 and
2013, the possibility existed that the parties could have reached a settlement
on the courthouse steps prior to interest arbitration. The window of
opportunity for a negotiated settlement closed abruptly, however, when the
union switched courses on its wage proposal following months of bilateral
negotiations and mediation in which it consistently maintained its initial
proposal to link wage increases to CPI-U.”
bargaining occurs when one party at the bargaining table in some manner
evidences an attempt to make a proposal less attractive. The Commission has
determined, and the Washington Supreme Court has affirmed, that interest
arbitration represents a continuation of the collective bargaining process and
of the parties’ obligation to bargain in good faith. In this case, the union
argued that its wage proposal did not infect the bargaining process, because
the bargaining process was finished once impasse was declared. The
examiner disagreed, explaining that impasse can and should be broken if
possible, even after the Executive Director has certified the matter for
interest arbitration. “Offers can be changed after interest arbitration has
been invoked, particularly when there is an apparent attempt to narrow the
examiner explained the impact of the Association’s behavior. “Instead of
narrowing the parties’ differences, the union frustrated the collective
bargaining process by making its wage proposal less attractive to the employer
and making it less likely that the parties would be able to reach agreement.”
Irvin also rejected the union’s argument that the employer’s complaint was not
timely. The examiner determined that it was reasonable for the employer to
conclude that the union’s subsequent email regarding
its wage proposal was tied to CPI-U as it had been in its initial proposal.
Therefore, the examiner determined that the employer knew of the change in the
union’s position and filed its complaint within the six months statute oflimitation.
a remedy, Examiner Irvin ordered the union to cease and desist from its illegal
activity, to post appropriate notices, and to enter the interest arbitration
hearing with the initial wage proposal it provided to the employer in which the
wages were tied to CPI.
Note (Chris Casillas): This case is a good reminder that the good faith
bargaining obligation does not cease to operate once an impasse is reached and
the parties have been certified for interest arbitration. There is a
statutory obligation that all collective bargaining be done in “good
faith.” The interest arbitration process was designed to be a final
step in the process to reach a new collective bargaining agreement,
but it is still a part of the collective bargaining process as a whole.
As such, both the employer and union must act in a manner that each side would
reasonably believe could bring the parties closer to a deal rather than
escalating any demands, and such an obligation continues through the
We are paying for the DOE/DOI/SCI/OEO/OSI investigators to investigate us. And it all starts with asking "where is the money?" Similarly, "where do my tax dollars go?" We, the general public, have no way to counter their rulings except in expensive and time-consuming litigation.
I have posted many times that on May 23, 2000 our current Chancellor, Carmen Farina, called me up at home screaming, cursing, and verbally attacking me after I asked where the money was going that had been given to PS 6 and PS 198 for the Arts. I listened to 20 minutes of horror. It was quite a shock, because at the time I was new to the public school system, and had worked with Carmen for 2 years on setting up a project called the Arts Together Community Partnership, my idea.
My point is this: if you see something in a school that you think is a violation of law, rights, or theft, report it, in writing and in detail, to a person outside of the ring of thieves DOE/DOI/SCI/OEO/OSI, like a lawyer, the police, the District Attorney. Document everything, who you go to, who you talk to, etc. This is VERY important.
And if you are told that you must go speak with an investigator, GO!!! but be cautious in answering their questions, as their goal is to charge you with whatever happened. And always assume that everything you say to anyone is being taped.
The Special Commissioner of Investigation’s Hand is in the Pocket of the Chancellor?
SCI Richard Condon is in the Pocket of the DOE Dennis Walcott?
Part 1 of the EducatorFightsBack.org’s SCI Series
The Special Commissioner of Investigation’s Hand is in the Pocket of the Chancellor?
Relax…it’s a question, not a statement. Notice the “question mark” at the end? Just a quick thank you to my public school teachers for teaching me proper punctuation and grammar. Any mistakes you see with commas and wrong use ofcapitalsare mostly my lack of proofreading. Sorry, but I’m fighting for my career and trying to be a father and husband, so these posts are often written and posted quickly. Never written without thought though.
In any case, back to thequestionabove. The Special Commissioner of Investigation’s Hand is in the Pocket of the Chancellor? I’m simply asking who pays Special Commissioner of Investigation Richard Condon and the rest of the investigators and lawyers of SCI. Not a valid question? I mean two of them, Mr. Martucci and Mr. Romano, paid a visit to my father-in-law this past summer at his job, while my family and I were in Greece. That is three months after the 14 month investigation on me was over (See report here).
More recently, the day before my 3020-aterminationhearing was tostart, the two investigators came back and visited my mother-in-law at her apartment where she watches my two boys. That was just two weeks ago today. To make it even more interesting, she told me they were playing with my son. Hmm….I mean I know I have been a big job security for the over 13 investigators, but I don’t think we are at the level where they can come “gaga googoo” with my kids. Apparently there are even more investigations on me and that brings the number up to a whopping 38 . Yes, 38 investigations on me that all startedafterI questioned the budget and put in my own complaint about my principal’s alleged financial misconduct. By the way, SCI did not take that case and referred it to the DOE’s Office of Special Investigation (OSI). Yes for over 600 days the DOE has been investigating the DOE.
This brings us to the meat and question of this post. Who investigates what and who is paying for it. You would agree that following thepapertrail is important as “Cash is King”, correct?
The DOE has two investigative bodies that are under the jurisdiction of Chancellor Dennis Walcott. That is OSI and OEO (Office of Equal Opportunity. Now OSItypicallytakes cases of corporal punishment of students and OEO handles discrimination and harassment. I italicized the wordtypicallyfor a reason. SCI, who works under the NYC Department of Investigation (DOI), takes on “more serious” cases and can defer cases to OEO and OSI, so some cases not involving corporal punishment, harassment and discrimination can be investigated by OSI and OEO if referred.
Are you still following? Maybe this will help:
DOE—-> OSI and OEO
Now seeing this and watching the news when Richard Condon is talking about some higherprofileinvestigation, you would think that SCI is unbiased, a body way above the DOEand therefore impartial, right? They owe no allegiance to the DOE, so why would any SCI investigation and finding be flawed or biased. A United Federation of Teachers (UFT)lawyeronce told me “The DOE is scared of SCI and hates them, because SCI investigates them.” <cough>bullsh*t<cough>.
You see, while I was in educator exile I did a little investigating of my own and this is what I found:
By using the websitewww.seethroughny.net, you are able to put in any city employee and see their salary for the last few years. You can also see their overtime and per-session. What interested me the most is that you can actually also see where the money comes from. Let’s take a look and compare, shall we?
Here is DOE Chancellor Dennis Walcott’s:
Notice the Agency that pays him is the Department of Education?
Next we enter an arbitrary DOE lawyer like David Brodsky
Now let’s pop in the Commissioner of the NYC Department of Investigation, which is above SCI and separate from DOE.
Rose Gill Hearn Payroll
Ok, that makes sense. She is paid from the budget of the Department of Investigation.
Now Let’s just plug in Richard Condon in the search. Should be DOI as well, right?
Wait…What the what? Richard Condon get’s paid from the budget of the DOE? The same body he investigates?
There must be some mistake. Let’s enter another SCI employee like Chief Investigator Thomas Fennell. By the way, I know way too many names of investigators for being a mild-mannered tech teacher. Mr. Fennell assigns cases and I believe also refers or even decidesnot to investigate them.
What? Paid from the DOE as well? I did this for all the investigators I know and all the same. Even the lawyers who were involved in denying my whistleblower complaint.
What? You want more proof that the DOE pays Richard Condon and his office from their $25 billion budget?
Ok, well look what else I found when I looked at my own school’s budget and expenditures from 2010-2011. Looks like we paid about $6,637 to the Special Commissioner of Investigation. Unless I’m reading it wrong.Click Here for School budget link
Finally….I simply asked SCI who pays them.
From: Ann Ryan <email@example.com>
Date: Tue, May 28, 2013 at 4:02 PM
Subject: Request for information
To: “Mr. Portelos” <firstname.lastname@example.org>
Dear Mr. Portelos:
I have been asked to respond to the e-mail request for information you made on May 15, 2013 at 12:58 p.m. to, it appears, www.nyc.gov. That inquiry was ultimately forwarded to me. You asked:
“Is the Special Commissioner of Investigation [(“SCI”)] a totally separate entity from the NYC Dept of Education? Does it receive any funding from the NYC DOE budget?”
Section 1 of Executive Order No. 11 of 1990 requires the Commissioner of Investigation to appoint a Deputy Commissioner of Investigation for the New York City School District, “who shall be independent from the Board of Education.”
Section 5 requires that “[t]he salary and expenses of the Deputy Commissioner and his or her staff shall be borne by the Board of Education, within a budget allocation mutually agreed upon by the Board of Education and the City, provided however, that such budgetary allocation will be sufficient to ensure the effective and independent performance of the duties and responsibilities of the Deputy Commissioner.”
(Subsequently, Executive Order No. 34 of 1992 changed the title “Deputy Commissioner” to the “Special Commissioner of Investigation.”)
Very truly yours, Ann Ryan, SCI
And there you have it.
Let’s just look at this analogy here. One SCI investigator once said to me “You are always using analogies. It’s probably because you are a teacher.”
Imagine you owned a house and you needed an inspector to check on some violations. You callJim Bob Inspectionand pay Jim Bob to come and investigate for any violations or issues. He investigates and you cut him a check. Once he leaves he sends you a report with his findings and on top of that calls the Department of Buildings who then fines you. Yes, you paid Jim Bob and yes he investigated, but in the end he found thatyouhad violations. Not a likely story?
Did you follow that analogy? How impartial is impartial? So is the commissioner’s hand in the pocket of the chancellor? Not physically, but it appears Chief Financial Officer Michael Tragale cuts them a check.